Legal Tip 162: Dying Intestate and Leaving a Spouse with Children not of that Spouse

Dying Intestate: Leaving a Spouse with Children not of that Spouse

Brady Bunch situation.

What actually happens if a person dies without a will, and they have children and a spouse who is not a parent of those children?

Under NSW law section 113 of the Succession Act will apply:
SUCCESSION ACT 2006 - SECT 113 Spouse’s entitlement where any issue are not issue of the spouse

The spouse will be entitled to the majority of the assets:
i) All of the personal effects of the deceased, plus
ii) A Statutory legacy amount of about $350k (changes with CPI), plus
iii) Half of the remainder.

The children will get equal shares of what is left. Children here does not include step children.

Example
Mike is married to Carrol
Mike has 3 boys with a woman other than Carol
Carol has 3 girls with a man other than Mike.
Mike dies without a will
Mike owns $400,000 worth a shares, a main residence owned with Carol as Joint Tenants, an investment property with $1mil with Carol as Tenants in Common in equal shares.
What happens?

Carol gets all of Mike’s stuff – his golf clubs, playboy collection, watches etc
The main residence goes to Carol automatically bypassing the will and intestacy laws because it is owned as Joint Tenants.
Mike’s other assets are
Carol gets $350,000 Cash or assets.
Mike’s remaining assets are $500,000 worth of the investment property.
After the $350k is taken out there is only $150,000 left for his children. Mike’s 3 boys get $50k each.
The 3 girls do not get anything as they are not Mike’s children (unless he legally adopted them).
Carol now goes off and marries Frank.
(happy ending – for Carol)

If Mike had a will he could have changed the outcome.